Click v. Owens-Corning Fiberglass Corp. (1995)

Our plain-English summary of Click v. Owens-Corning Fiberglass Corp. (Texas Court of Appeals, May 4, 1995).

George Click worked for over thirty years as an insulator for Marathon Oil Co., installing and removing asbestos pipe insulation. He died of mesothelioma. His widow and children sued Owens-Corning Fiberglass Corporation and Pittsburgh Corning Corporation, asbestos manufacturers, for wrongful death. After the family presented its evidence, the trial court directed a verdict for the companies. It found no evidence that they supplied the asbestos products that caused or contributed to his death. The Court of Appeals of Texas reversed. A coworker, Donald Barron, testified that the companies' products were used to insulate pipes at Marathon from 1965 on, and that the dust flew everywhere. Barron could not say he saw Click install those products specifically. The court held that this circumstantial evidence was enough for a jury to find that Click more likely than not inhaled fibers from the companies' products. It sent the case back for trial. It applied the frequency, regularity and proximity approach without formally adopting the Fourth Circuit's Lohrmann test. A concurring judge stressed that the ruling did not rest merely on the products being somewhere in the plant.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Texas Court of Appeals
• Decided: May 4, 1995
• Citation: 899 S.W.2d 376
• Docket: No. 14-93-00881-CV
• Stage: Appeal from judgment after trial
• State: Texas

Outcome. The appeals court reversed the directed verdict for Owens-Corning Fiberglass and Pittsburgh Corning and remanded for trial, ruling that the Click family had presented enough circumstantial evidence that George Click was exposed to the companies' products.

What the court held. In an asbestos case, a plaintiff can survive a directed verdict with circumstantial evidence that the worker frequently and regularly worked in proximity to the defendant's products so that he likely inhaled its fibers. Direct proof that the worker handled the defendant's product is not required.

Issues decided: Causation, Wrongful Death and Survival, Product Identification.

The people and their exposure

• George Click: mesothelioma; died

The defendants

• Owens-Corning Fiberglass Corporation (manufacturer) · its asbestos trust
• Pittsburgh Corning Corporation (manufacturer) · its asbestos trust

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Gaulding v. Celotex Corp. (Texas Supreme Court, 1989). The Texas Supreme Court affirmed the court of appeals' judgment upholding summary judgment for Celotex, National Gypsum, U.S. Gypsum, Keene and GAF against the survivors of Ethel Gaulding.
• Slaughter v. Southern Talc Co. (U.S. Court of Appeals, Fifth Circuit, 1991). The Fifth Circuit reversed summary judgment for Owens-Corning Fiberglas and remanded for trial, affirmed summary judgment for Southern Talc, and reinstated the order letting Mrs. Moran and Mrs. Green substitute for their deceased husbands.
• Lohrmann v. Pittsburgh Corning Corp. (U.S. Court of Appeals, Fourth Circuit, 1986). The Fourth Circuit affirmed the judgment for the defendants: directed verdicts for Raymark, Celotex and Pittsburgh Corning, a jury verdict for the other four defendants, and the challenged evidentiary rulings and jury instructions, against plaintiff Lohrmann.
• Keene Corp. v. Gardner (Texas Court of Appeals, 5th District, 1992). The appeals court affirmed the judgment for the four plaintiffs against Keene Corporation, but vacated the trial court's order sanctioning Keene over the mediation and ordered the plaintiffs to refund any money Keene paid under it.
• Celotex Corp. v. Tate (Texas Court of Appeals, 13th District, 1990). The court of appeals affirmed the judgment for Tate's heirs against Celotex (as successor to Philip Carey) and George Rowley, Inc., including actual and punitive damages, rejecting all eleven of Celotex's points of error.

Later decisions citing this one

3 later decisions in our library cite this one:

• Georgia-Pacific Corp. v. Stephens (Texas Court of Appeals, 2007). The court of appeals reversed the judgment on the jury verdict for Fred and Betty Stephens and rendered judgment for Georgia-Pacific, because the expert causation testimony was legally insufficient.
• Georgia-Pacific Corporation v. Stephens (Texas Court of Appeals, 1st District, 2007). The court of appeals reversed the judgment for Fred and Betty Stephens against Georgia-Pacific and rendered judgment for Georgia-Pacific, because the expert causation testimony was legally insufficient.
• North American Refractory Co. v. Easter (Texas Court of Appeals, 13th District, 1999). The court of appeals affirmed the jury verdict and judgment for Moss's estate, Easter, Roberts and the two spouses against North American Refractory Co. (NARCO), including the $1.5 million punitive award.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

899 S.W.2d 376 (1995)

Loyce L. CLICK, Sarah Click Troup, Joyce Click Holton, George Wayne Click, and the

Estate of George Click, Appellants,

v.

OWENS-CORNING FIBERGLASS CORPORATION and Pittsburgh Corning

Corporation, Appellees.

No. 14-93-00881-CV.

May 4, 1995.

Rehearing Overruled June 1, 1995.

Concurring Opinion on Overruling of Rehearing June 1, 1995.

Rehearing Overruled June 8, 1995.

Court of Appeals of Texas, Houston (14th Dist.).

[*377] Richard N. Countiss, John E. Williams, Jr., Eric Bogdan, Houston, for appellants. Thomas W. Taylor, Kevin F. Risley, Houston, Nicholas S. Baldo, Beaumont, for appellees. Before LEE, AMIDEI and EDELMAN, JJ.

OPINION

AMIDEI, Justice.

This is an appeal from a directed verdict for appellees, Owens-Corning Fiberglass Corporation and Pittsburgh Corning Corporation. The trial court held that there was no evidence that appellees supplied the asbestos products that caused or contributed to George Click's death, and rendered a take nothing judgment for appellants. In two points of error, appellants assert that the trial court erred in rendering a directed verdict that appellants take nothing, because they presented some evidence that appellees supplied products which caused or contributed to George Click's death. We reverse and remand. Appellants, the widow and children of George Click, sued appellees, asbestos manufacturers, for his wrongful death. George Click was employed for over thirty years as an insulator for Marathon Oil Co. He installed and removed asbestos insulation from pipes. He died from mesothelioma, a form of cancer caused only by exposure to asbestos. Also, he exhibited other pulmonary problems commonly caused by asbestos exposure.

In an appeal from a directed verdict, an appellate court must consider all of the evidence in the light most favorable to the party against whom the verdict was instructed, disregarding all contrary evidence and inferences. Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978). If there is any conflicting evidence of probative nature in the record, a determination of the issue is for the jury. White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.1983). Here, after appellants rested their case, appellees asserted that there was no evidence that they supplied the asbestos products which caused or contributed to George Click's death. The trial court directed a verdict in favor of appellees and, appellants perfected this appeal.

A fundamental principle of products liability law requires the plaintiff to prove that the defendants supplied the product which caused the injury. Gaulding v. Celotex Corp., 772 S.W.2d 66, 68 (Tex.1989). It is difficult to determine exactly which exposure to asbestos is the cause of an asbestos-related cancer. Thus, appellants have met their burden of proof if they have some evidence that appellees supplied any of the asbestos to which George Click was exposed. Celotex Corp. v. Tate, 797 S.W.2d 197, 204 (Tex. App.— Corpus Christi 1990, no writ).

Appellees urge us to adopt the Lohrmann test which states, "To support a reasonable [*378] inference of substantial causation from circumstantial evidence, there must be evidence of exposure to a specific product on a regular basis over some extended period of time actually worked." Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir.1986). This test, frequently called the "frequency, regularity, and proximity test," was applied in Texas law by the Fifth Circuit as the minimum showing of the producing cause in asbestos cases. Slaughter v. Southern Talc Co., 949 F.2d 167, 171 (5th Cir. 1991). We find no case, and appellees cite us to none, in which a Texas state court "adopts" the Lohrmann test. However, our sister court in Dallas "applied" the frequency, regularity and proximity test, while specifically stating they decline to "adopt" the Lohrmann standard. Keene Corp. v. Gardner, 837 S.W.2d 224, 227 (Tex.App.—Dallas 1992, writ denied). In applying the Lohrmann standard, appellants may prove frequency, regularity and proximity by showing that George Click frequently and regularly worked in proximity to appellees' products such that it is likely that he inhaled appellants' asbestos fibers. In the present case, it was alleged that George Click's mesothelioma was not caused by one defendant's product. The record reflects that many companies supplied asbestos containing products to Marathon Oil Co., while George was working there and being exposed. Specifically, the evidence reflects that George Click was exposed to asbestos containing products manufactured by appellees over a long period of time. Donald Barron, an employee who worked alongside George Click, testified that appellees' products were used at Marathon Oil Co. to insulate pipes since he started working there in 1965. He stated that it flew everywhere as it was fitted around the pipes. George Click was a pipe fitter for Marathon Oil Co. and used all of the products there from 1944 until 1976. However, Barron was unable to specifically state that he saw George Click installing appellees' products. George Click insulated pipes for an extended period of time with asbestos-containing products, appellees' products were used by his company for many years to insulate pipes, and appellees' products were seen near George Click. The evidence that George Click was actually exposed to appellees' products is circumstantial. However, some evidence existed that appellees supplied the products that caused or contributed to George Click's death. A reasonable jury could conclude that George Click, more probably than not, inhaled asbestos fibers from appellees' products. We find that circumstantial proof of exposure to appellees' products is sufficient to withstand a directed verdict. Accordingly, we reverse and remand for trial.

EDELMAN, J., concurs in the result only.

CONCURRING OPINION ON MOTION FOR REHEARING

EDELMAN, Justice, concurring.

A further clarification of the Court's opinion may be helpful to avoid misunderstanding. Importantly, the opinion does not reverse the directed verdict merely because appellant's product was used somewhere at the plant sometime during the period Mr. Click worked there. Instead, Mr. Barron testified that: (1) he

worked next to Mr. Click at the plant for many years; (2) Mr. Click installed asbestos containing pipe insulation at the plant during that time; (3) Mr. Barron saw boxes of appellant's asbestos-containing pipe insulation products in the specific area where he and Mr. Click were working; and (4) Mr. Click worked with all of the pipe insulation materials at the plant. Based on these facts, there is a strong enough inference that Mr. Click actually worked with appellant's products to overcome a directed verdict and submit the issue to a jury.

Sources

• The opinion on Google Scholar
• Texas asbestos laws
• Texas asbestos exposure sites